842 F.

2d 535

Michael E. SPILLER, Plaintiff, Appellant,

v.
U.S.V. LABORATORIES, INC., et al., Defendants, Appellees.
No. 87-1669.

United States Court of Appeals,

First Circuit.
Heard Feb. 4, 1988.
Decided March 23, 1988.
1

Blas C. Herrero, Jr., with whom Raul A. Rovira-Burset, Hato Rey, P.R., was on
brief, for plaintiff, appellant.

Gregory T. Usera with whom Ferraiuoli, Axtmayer & Hertell, Hato Rey, P.R.,
was on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, SELYA, Circuit Judge, and CAFFREY,*

Senior District Judge.

CAFFREY, Senior District Judge.

The sole issue on appeal is whether the District Court abused its discretion by
dismissing the case because of plaintiff's failure to comply with the court's
discovery orders. We affirm.

Plaintiff-appellant filed this action in March, 1985 claiming he was dismissed

from his employment with the defendant-appellee because of racial
discrimination. In addition, he claims damages for breach of his employment
contract with defendant.

The defendant initiated discovery on June 19, 1985 with a request for
production of documents and a notice for plaintiff's deposition. When the
plaintiff failed to appear at the scheduled meetings, the defendant moved for an
order to compel discovery. On August 16, 1985, the District Court granted the
motion to compel and awarded the defendant costs, to be paid by August 30.
Although the plaintiff thereafter complied with the discovery order, the

plaintiff failed to pay the costs by the appointed date. Consequently, on

September 6, 1985 the defendant moved under Rule 37(b)(2) for sanctions
against the plaintiff. Before the court acted on the motion, however, the
plaintiff paid the costs. This was the first instance where plaintiff failed to
comply with a court order until the defendant took action seeking to enforce its
rights.
8

The next failure to obey court orders occurred when the plaintiff failed to post a
nonresident bond as ordered by the court. On October 2, the court, pursuant to
defendant's motion, ordered the plaintiff to post a $750 nonresident bond. On
November 13, over a month later, the bond remained unposted. The court
entered another order requiring the plaintiff to post the bond by December 2 or
suffer a dismissal of the action. Despite the threat of dismissal, the December 2
deadline passed without plaintiff's compliance. Therefore, on January 7, 1986,
the defendant moved for dismissal. Shortly after the defendant's motion, the
plaintiff posted the bond. The District Court therefore denied the motion to
dismiss.

On April 17, 1986, the defendant submitted another request for documents to
the plaintiff as well as an interrogatory. Attached to the request for production
were five releases requiring plaintiff's signature. To respond to this request, the
plaintiff need only have signed the releases and returned them to the defendant.
Nonetheless, the plaintiff failed to comply with the discovery request within the
permissible time period, causing defendant to request in writing that the
plaintiff comply. After several extensions of time and informal attempts by the
defendant to induce the plaintiff to respond, the defendant finally filed a motion
to compel discovery on July 15, 1986, almost two months after the time in
which plaintiff was originally obligated to provide the requested discovery.

10

On October 17, 1986, plaintiff's counsel withdrew from the action. The court
conditioned counsel's withdrawal on plaintiff's retaining new counsel within
five days. As of March 13, 1987, however, plaintiff had not yet retained new
counsel. The court therefore ordered the plaintiff to retain new counsel within
ten days. Despite the court order, plaintiff failed to obtain counsel and a pretrial
conference scheduled for April 1, 1987 had to be cancelled. On April 6, the
court once more granted plaintiff additional time to retain counsel. The plaintiff
was also given thirty days to comply with all outstanding discovery requests
including the requested releases. In addition, the court scheduled a pretrial
conference for May 8. The plaintiff was once again warned that failure to
comply with the court's order would result in dismissal.

11

On May 8, the pretrial conference could not be held because the plaintiff had

not retained counsel until May 4, and therefore, had not fulfilled his discovery
obligations. Despite the earlier warning, the court nevertheless gave the
plaintiff five more days to obey the court's orders. When the plaintiff failed to
comply with this new deadline, the defendant filed a motion to dismiss under
Rule 37. On June 10, when the plaintiff had still not complied with the court's
order, the defendant's motion was granted. Plaintiff appealed.
12

Absent an abuse of discretion, this court may not disturb a district court's
dismissal of an action for failure of the plaintiff to comply with court orders.
National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct.
2778, 49 L.Ed.2d 747 (1976). A plaintiff who appeals such a dismissal bears a
heavy burden of demonstrating that the trial judge was clearly not justified in
entering an order of dismissal under Rule 37. Damiani v. Rhode Island
Hospital, 704 F.2d 12, 17 (1st Cir.1983). We hold that the plaintiff has
demonstrated no abuse of discretion in the present matter.

13

On at least three different occasions, the plaintiff ignored court orders without
justification or explanation. The plaintiff was given ample time within which to
comply with court orders. He received notice on two occasions of the adverse
consequences which would follow a failure to comply. Judging from the
record, at no point did the plaintiff attempt to inform the court of the reasons
for delay and non-compliance. Despite warnings and numerous extensions of
time granted by the defendant or the court, the plaintiff dallied in retaining new
counsel and failed to produce the requested discovery. The discovery requested
was not beyond the power of the plaintiff to provide. The plaintiff had only to
sign some releases which would have enabled the defendant to acquire
documents essential to the preparation of its defense.

14

The plaintiff argues strenuously that his failure to comply was not willful or in
bad faith. However, based on the history of foot-dragging evident from the
record, it is difficult to draw any other inference but that plaintiff did not intend
to comply unless absolutely forced to do so. The plaintiff ignored two court
orders to post a bond until threatened with dismissal. He failed to retain new
counsel despite three court orders. He refused to comply with discovery
requests on two occasions even though he was warned that his case would be
dismissed. He has offered no reason as to why he could not sign the requested
releases. Indeed, at this late date, he now offers to sign the forms stating it was
never his intention not to do so.

15

To excuse his actions, the plaintiff points to poor communication with his
attorney arising from the fact that the plaintiff lived outside of Puerto Rico and
was continually moving about. Suffice it to say, the plaintiff has the

responsibility for keeping abreast of all developments in an action that he

instituted. The defendant should not be made to suffer because the plaintiff has
failed to establish an effective means of communication with his attorney.
16

The plaintiff also argues that the trial judge could have imposed a less severe
sanction than dismissal. That may be so, but it is well settled that the question
on review is not whether we would have imposed a more lenient penalty had
we been sitting in the trial judge's place, but whether the trial judge abused his
discretion in imposing the penalty he did. National Hockey League v.
Metropolitan Hockey Club, 427 U.S. at 642, 96 S.Ct. at 2780. We have already
indicated that dismissal was clearly within the trial judge's discretion.

17

Finally, plaintiff argues that the Fifth Amendment entitled him to a hearing
prior to dismissal on the issue of whether less severe sanctions should be
imposed. We find this contention to be without merit. Lack of a hearing does
not offend due process where the plaintiff had ample warning of the
consequences of his failure to comply with court orders. See Link v. Wabash
Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).

18

Affirmed.

Of the District of Massachusetts, sitting by designation